A.D.KOSHAL,J. - (1.) THE facts giving rise to this second appeal may be stated at some length. Rama Nand was the owner of land situated in village Phusgarh Jagir, Tehsil and District Karnal, including land measuring 46 kanals 3 marks which is now in dispute. He adopted Sewa Singh defendant No. 3 as a son. In the year 1962, Raja Ram, who was the plaintiff in the present proceedings but died during the pendency of this appeal, ' instituted a suit praying for the grant of a declaration that Sewa Singh's adoption by Rama Nand was invalid. In that suit Raja Ram described himself as a 5th degree collateral of Rama Nand and claimed a right to maintain the suit on that basis. Rama Nand died in January, 1963, and Raja Ram withdrew the suit after obtaining permission of the Court to file a fresh suit on the same cause of action. 3. Raja Ram then filed suit No 75 of 1933 for possession of the land left by Rama Nand. In that suit Sewa Singh (now defendant No. 3) and Badlu (now defendant No. 1). figured as defendants Nos. 1 and 2 respectively. Raja Ram alleged that the adoption of Sewa Singh was invalid and that although Raja Ram and Badlu were both 5th. degree collaterals of Rama Nand and the land then in dispute was also ancestral qua them and Rama Nand, Raja Ram alone was the sole heir of Rama Nand by virtue of the provisions of the Hindu Succession Act, No. 30 of 1956. It was also alleged in the plaint that Rama Nand's desire before his death was that his property should not pass after his death to any person except Raja Ram who, it was averred, was looking after Rama Nand and was his sole heir after his death. Another assertion made was that Raja Ram and Badlu were mortgagees with possession of 21 bighas and 10 biswas out of the land then in dispute. In view of this assertion, it was prayed that in case the adoption was not invalidated by the court, a decree for possession of the mortgaged land mentioned above be passed in favour of Raja Ram and Badlu in their capacity as mortgagees thereof. 4. In the written statement filed by Badlu in that case, he admitted the allegations made by Raja Ram in so far as they related to the adoption of Sewa Singh by Rama Nand. He contended, however, that he was in possession of one -half of the land left by Kama Nand because he and Raja Ram Were entitled to succeed to Rama Nand's estate in equal shares. In his replication the plaintiff denied the averments made by Badlu in so far as they ran counter to those made in the plaint. Sewa Singh came to terms with Raja Ram and agreed to Restore possession of the then disputed land to him on receipt, of Rs.,15,000/ -and odd, Raja Ram then applied to the trial Court (application Exhibit D. 3) under Order 1 rule 10, and section 151 of the Code of Civil Procedure for striking off the name of Badlu from the plaint on the ground, that Badlu was neither a necessary nor proper party as the (Badli) had no fight of succession to the estate -of Rama Nand in view of the provision's of the Hindu Succession Act :Badlu did not oppose this application but made the following statement (Exhibit D. 7): I am in possession of half the land as heir. If my name is to be struck off, then I should be awarded costs. I am not bound by the settlement which raja Ram had arrived at with Badlu. Thereafter the trial Curt passed the following order (Exhibit D. 6): Per request of the plaintiff, the name of defendant No. 2 (Badlu) is deleted from the list of defendants. The plaintiff will pay Rs. 20/ - as costs to defendant No. 1 (defendant No. 22) A decree for possession of the land then in dispute was passed in favour of Raja Ram and against Sewa Singh on the basis of the compromise between the two. Raja Ram took out execution of that decree but Badlu resisted the delivery of possession of that part of the land which was in his occupation. He asserted that he was occupying the land in his own right as an owner by virtue of inheritance and as also a mortgagee, Raja Ram's application under rule 97 of Order XXI of the Code of Civil Procedure complaining of resistance was dismissed and it was then that he brought the suit which has given rise to the present appeal, under rule 103 of Order XXI of the Code. He averred that he alone was entitled to succeed to the estate of Rama Nand, that the decree for possession was rightly passed in the previous suit in his favour and that Badlu defendant No. 1 had no right to or interest in the land of which he was in occupation. Badlu resisted the suit and reiterated the allegations which he had made by way of defence in the earlier suit. He also urged that the fresh suit was barred by reason of the provisions of rule 2 of Order II of the Code of Civil Procedure. The learned trial Judge framed the following issues from the pleadings of the parties: 1. Whether the plaintiff is the heir of Rama Nand deceased and owner of the suit land as such ? 2. WHETHER defendant No. 1 redeemed the mortgage of any part of the suit land If so, how much ? What is the effect of the previous Litigation on the present suit ? 3. WHETHER the plaintiff is estopped from filing this suit by his acts and conduct ? 4. WHETHER the suit is barred under Order II, rule 2 ? Whether the suit is within time ? 5. WHETHER defendant No. 1 exchanged any land with defendant No. 2 ? 6. IF so, with what effect ? Issue No 5 was treated as preliminary and was decided in favour of Badlu defendant on the ground that the cause of action in the present suit as well as in the previous one was the death of Rama Nand. The suit was accordingly dismissed. 7. RAJA Ram instituted an appeal against the judgment of the trial Court and the same was accepted on the 15th of June, 1966, by Shri Sarup Chand Goyal. Additional District Judge, Karnal, who was of the opinion that Badlu could not be deemed to be a party to the previous suit as his name had been struck of the record on the application of Raja Ram which Badlu did not oppose and that succession to Rama Nand which is the basis of the dispute in the present litigation -was not relevant in the previous suit -so that the causes of action in the two suits were different. The decree of the trial Court was, therefore, set aside and the suit was remanded to the trial Court for decision on merits. It is against the judgment of the learned additional District Judge that the present appeal has been filed by Badlu defendant No. 1.
(2.) SHRI H S. Gujral learned counsel for the appellant, has raised the following three contentions: (i) The cause of action in the suit in which order Exhibit D.6 was made was the same as that in the suit from which this appeal has arisen and finding of the learned Additional District Judge to the contrary is erroneous. (ii) Order Exhibit D 6 was made not under the provisions of rule 10(2) of Order I of the Code of Civil Procedure but under rule 1 of Order XXIII thereof. In this connection the two factors noted below cannot be lost sight of: (a) In statement Exhibit D.4 Raja Ram specifically stated that he was giving up his suit against Badlu and was withdrawing the same as against him. (b) In order Exhibit D.6 the Court did not give any finding on the question as to whether Badlu was or was not a necessary party to the proceedings. (iii) Even if order Exhibit D.6. could be taken to have been passed under the provisions of rule 10(2) above mentioned, the applicability of the provisions of rule 1 of Order XXIII and rule 2 of Order II of the Code of Civil Procedure could not be ruled out, if on the facts the case was covered by these provisions. I shall consider these contentions seriatim.
(3.) THE first contention of Shri Gujral appears to me to be unexceptionable. In the present suit the cause of action, as pointed out by the learned Additional District Judge, is the death of Rama Nand and the rule of succession under which Raja Ram was Rama Nand's sole heir. This was precisely the cause of action in the suit in which order Exhibit D. 6 was made and it cannot be said that the inheritance of Rama Nand was not "relevant" to that suit as was erroneously assumed by the learned Additional Sessions Judge. It is to be noted that not only was the said rule of succession specifically pleaded by Raja Ram but he could not also possibly lay claim to the property left by Rama Nand with out asserting that he was Rama Nand's sole heir. The causes of action in the two suits are, therefore, held to be identical and the finding of the learned Additional District Judge to the contrary is reversed. The second contention of Shri Gujral appears to be without substance. Statement Exhibit D4 was made by Raja Ram in connection with his application Exhibit D 3 in which no mention of the withdrawal of the suit against Badlu was made. On the other hand, all that was stated in that application was that Badlu was neither a necessary nor a proper party and that his name was liable to be struck off as he had been improperly joined as a defendant in the suit. The application purported specifically to have been made under the provisions of rule 10 of Order I of the Code of Civil Procedure. It is in the light of the contents of that application that statement Exhibit D.4, made by Raja Ram must be construed. He no doubt stated that he was "giving up" and "withdrawing" his suit against Badlu but he also added that Badlu's name against whom no relief was claimed in the suit be struck off. This statement was obviously made by him in support of application Exhibit D.3 and the use by him of the words "give up" and "withdraw" in relation to the suit would not change the nature of the application or the action which Raja Ram wanted to have taken there under. This was apparently how the Court also construed the statement as it made no order dismissing the suit as, against Badlu but merely said that Badlu's name was deleted from the list of defendants as requested by Raja Ram. The assertions made in statement Exhibit D 4. do not in this view of the matter convert application Exhibit D 3 from one under rule 10 (2) of Order I of the Code of Civil Procedure to another under rule 1 of Order XXIII thereof nor can those assertions be considered to change the nature of order Exhibit D.6 which was obviously made under rule 10 (2) ibid. It was also not necessary, in my opinion, for the Court trying the previous suit to come to the conclusion that Badlu was a party improperly joined before order Exhibit D 6 could be treated as one falling under rule 10(2). The provisions of that rule come into play as soon as the Court accepts the prayer of a plaintiff that the name of a particular defendant be struck off the record and puts the plaintiff on terms. That this is the correct view of the law is apparent from Mahanath Singh v. U Ba. Y A I R P.C. 110 the facts of which are given and which is discussed at length in a later part of this judgment. It would suffice to say here that according to their Lordships of the Privy Council an order accepting the prayer of a plaintiff for striking the names of some defendants off the record would amount to action taken under rule 10(2) provided the plaintiff was put on terms even though the said defendants might not have been improperly joined and might really be parties necessary to the suit. Under the circumstances I repel the second contention raised by Shri Gujral.;